The need for Uniform Civil Code:

‘What we want is a system which, while tolerating all religious beliefs, places them on a footing of perfect equality.’ – Edmund Barton

The ‘eye for an eye’ law existed during the old Babylonian period in the code of Hammurabi.

Is anyone willing to follow the law as of today?

The answer is No.

At least most of us would disagree.

We now believe in both providing justice and reparation to victim and in restoring the accused back in the community. This moral and philosophical justification came up as human life progressed and faced intricate circumstances.

Like Hon’ble Ruma Pal, Chief Justice of India, Supreme Court had pointed out, ‘India is a land of religions. Hindus, Buddhists, Jains, Muslims, Christians, Parsis and Sikhs form the nation.’ At the same time, the Preamble of the Constitution of India describes the nation as ‘sovereign, socialist, secular, democratic, republic.’

Balancing the beliefs of all the religions and the secularist claims of the nation is one of the most truculent problems to deal with.

Personal laws of each religion govern family matters such as marriage, divorce, succession, inheritance etc.

However, governance by personal laws is averse to the concept of secularism. It makes secularism look like an inane word in the Constitution of India. At most, what we are doing is to maintain goodwill among all religions.

Constitution of India:

According to Article 13 of the Constitution of India, if any law in force before the commencement of the Constitution is inconsistent with Part III of the Constitution, then they are void.

Therefore, if any law is against the provisions of Article 14, 15 and 21, then the law is said to be void.

Article 14 being right to equality and equality before law.

Article 15 being no law can discriminate on the basis of gender, caste, religion etc. and;

Article 21 being right to life and personal liberty.

Going by this, a lot of personal laws that are discriminatory against women should have been scrapped out by now.

However, Supreme Court has held in Krishna Singh v Mathura Ahir and a couple of other cases that, personal laws both that were in force before the commencement of Constitution or after are not susceptible to Part III of the Constitution.

On the other hand, in cases like Githa Hariharan v. Reserve Bank of India,where Section 6 of Hindu Minority & Guardianship Act was challenged as being discriminative against women. The court did not reject the petition saying it could not test the constitutional validity of personal law, instead it read down Section 6 of the Act to bring it in consonance with Article 14 and 15 of the Constitution.

Therefore, the decisions of the Supreme Court have also been mercurial making the position of personal laws vague.

In fact, Article 44 of the Constitution provides that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

The Declaration made by the General Assembly on 04/12/1986 known as the ‘Right to Development’ discusses the inconsistency between the personal laws of the country and the fundamental rights guaranteed by the constitution and has stated that all existing laws should be in conformity with right to equality guaranteed in the Constitution.

History:

Dr.B.R.Ambedkar wanted uniform code and was antagonistic towards personal laws as he considered them to be discriminative and flawed.

Jawaharlal Nehru, who did not recognise religious communities but only individuals, proposed Hindu Code Bill to replace Hindu Personal Laws with a Civil Code. This was opposed by orthodox hindus as it promoted monogamy, divorce and equal division of property between son, daughter and widow, adoption, maintenance to wife etc.

One of the major criticisms to the Code was how it did not touch upon the Muslim community and it was here that Nehru’s idea of secularism suffered a certain extent of lacuna.

Therefore, Nehru dropped Hindu Code on September 22, 1951 and Ambedkar resigned as the Prime Minister of India. Subsequently, a lesser version of Hindu Code was passed after a long opposition in the parliament between 1955-56 session. The video below from the movie Dr.Babasaheb Ambedkar captures pretty aptly the situation during that time.

Comprehensibly, the code failed to achieve what it intended to. However, Special Marriage Act, 1954 was passed allowing all Indians to marry under the Act, outside the realm of their individual personal laws. Under the Act, inheritance and succession was also governed by Indian Succession Act and not personal laws. Hence, the debate on Uniform Civil Code and why it cannot be achieved has been deliberated over several times.

Honourable Supreme Court of India on Uniform Civil Code:

The Supreme Court with a bench of Justices Vikramjit Sen and Shiva Kirti Singh on Monday, October 13, 2015 asked the Solicitor General of India, Ranjit Kumar to seek the view of the Government on whether it is willing to pass UCC (Uniform Civil Code) and had posted the matter further. The judges questioned the Government as to why it has not framed and implemented Uniform Civil Code which is necessary in order to treat all religions on the same yardstick in matters of law.

The bench was hearing a petition challenging the legal provision of Section 10A of Divorce Act which compels Christian couples to wait for at least two years for divorce, whereas the period of separation is one year for other religions. With an astonishing fervour, the Union Law Minister, Sadananda Gowda said that ‘Uniform Civil Code is the need of the hour and in the national interest.’

However, Parliament did not take any decision since then. In fact, a Muslim man accused of bigamy walked free as second marriage is allowed under Muslim Personal Law, even though Gujarat High Court made a strong pitch at amending the personal law and introducing Uniform Civil Code.

Further, a cleric body, Jamaat Ulama-i-Hind (JUH) proclaimed that Muslim Personal Laws flow from the Quran. It does not fall under ‘laws in force’ under Article 13 of the Constitution. Hence, it cannot be held to be unconstitutional. Doing so would revive personal law v. constitutional law debate.

Law Commission’s Appeal for Public Vote on UCC:

In the latest development, the Law Commission of India released a Questionnaire on 7th October, 2016 seeking public vote on implementation of Uniform Civil Code. The Appeal consists of a Questionnaire with 16 questions that can be filled out by everybody. Find the Questionnaire HERE. It needs to be answered with 45 days from 7th October.

With this the commission hopes to invite a healthy debate on Uniform Civil Code as it also seeks suggestions on all possible models and templates of common civil code.

With this, the All India Muslim Personal Law Board along with several other Muslim organisations boycotted the Centre’s move. Jamiat Ulema-e-Hind president Maulana Arshad Madani said that country was facing several issues including problems at the LOC. The Centre should focus on that rather than calling for opinions on UCC. He said ‘UCC will bring to an end country’s pluralism and paint all in “one colour.’

The move is also being opposed by Congress and JDU that blamed Central Government of polarising the nation ahead of the Assembly polls. 

Why UCC is the need of the hour?:

UCC has been opposed for way too long due to beliefs of the religious communities as laws being god given should not be altered. This is an insular notion that needs to be changed for the progress of the nation. All laws are man made and they were made to suit the situation at that point in time. But, like they say change is the only constant and the laws also need to change to suit the present generation.

For instance, like Justice Pardiwala said polygamy was allowed earlier under Quran to protect orphans and their mothers from the society. However, men have started using this now for selfish motives, which definitely calls for scrapping of such a law.

We live in a democratic society that guarantees equality as one of the most important fundamental rights and if our laws do not inculcate that, then sadly, we shall be considered as a democratic country only in theory, bluntly discriminating between genders and religions that put us back to the archaic times.

Therefore, gender equality is one reason why India needs Uniform Civil Code. 

The argument that the Uniform Civil Code violates the fundamental right to practice one’s religion guaranteed under Article 25 is again warped as Uniform Civil Code does not resemble any personal law. It does not impose the provisions of any one personal law over the other religious communities. All it does is to have a common and secular code, for all family matters devoid of discrimination. It does not bear the hallmarks of any personal law as such.

Thus, secularism is the second reason why we need Uniform Civil Code in India as common law for all citizens irrespective of the religion is secularism in its true sense. It also means having progressive laws for the changing needs of the country.

Therefore, it is time we don’t flummox religion with law and make way for a democratic, secular nation in the true sense.

Picture Courtesy: Wikimedia